New York Court of Appeals Issues Decision on Discovery of Social Media

With the advent of social media sites such as facebook, linked in, instagram and others, people often post pictures of themselves engaged in various activities. For several years now, our New York City personal injury lawyers have fought attempts by defendants to get access to our client’s personal social media accounts, which we believe is an invasion of privacy. In Forman v. Henkins, the New York Court of Appeals defined when defendants can have access to a person’s private social media account and what they are entitled to.

Disclosure in civil actions is generally governed by CPLR 3101(a), which says that there shall be full disclosure of all matter material and necessary to the prosecution or defense of an action, regardless of the burden of proof. It is well accepted law that a litigant seeking discovery must establish that the request is reasonably calculated to yield information that is relevant, regardless of whether discovery is sought from another party.

In analyzing the privacy concerns of facebook, the Court in Forman recognized that Facebook is a social networking website “where people can share information about their personal lives, including posting photographs and sharing information about what they are doing or thinking and that users create unique personal profiles, make connections with new and old “friends” and may set privacy levels to control with whom they share their information. Portions of a Facebook account that are “public” can be accessed by anyone, regardless of whether the viewer has been accepted as a “friend” by the account holder.

However, the Court in Forman held that where the defendant has established that there is a likelihood that the facebook account contains photographs, which are relevant, the photographs can be discovered by the defendants. In Forman the Plaintiff testified at her deposition that during the period prior to the accident, she posted “a lot” of photographs showing her active lifestyle. Likewise, given plaintiff’s acknowledged tendency to post photographs representative of her activities on Facebook, there was a basis to infer that photographs she posted after the accident might be reflective of her post-accident activities and/or limitations. Likewise, she testified that her speed of typing was affected and the Court found that the amount of time she spent on facebook after the accident may contradict that.

While the personal injury defense bar has proclaimed this decision as a sea change, and that they are now entitled to full access of all social media information of a Plaintiff, the decision is not as broad as the insurance industry lawyers claim. The Forman decision was based upon a very factual showing and New York’s personal injury lawyers should continue to insist that as a pre-requisite to discovery of social media, the defendant must establish the prerequisite foundation. Granting routine and unfettered access to social media would only allow this to become the norm, and our New York City personal injury lawyers will continue to fight these intrusive attempts to gain access to our client’s personal information. The Court of Appeals made clear that it was not endorsing wholesale and unlimited discovery of social media, in that it stated that we agree with other courts that have rejected the notion that commencement of a personal injury action renders a party’s entire Facebook account automatically discoverable.